Confiscation proceedings – a hidden sentence?
In many cases involving confiscation proceedings, the conversation in conference between solicitor and client may go as follows:
Client: ‘What am I looking at?’
Solicitor: ‘Around 12-15 months, suspended if you are very lucky.’
Client: ‘Oh, I can live with that!’
Solicitor: ‘But there is something else?’
Client: ‘What?’
Solicitor: ‘You are likely to lose your money and your car and have to sell your house.’
What are confiscation proceedings?
At its most simple it is the process by which those convicted of particular crimes are deprived of their benefit from those crimes.
So, for example, a particular client might steal £20,000 from her employer and spends it on a luxury holiday and new electrical items.
The proceeds of that crime is £20,000. This is her ‘benefit’ from the crime. She can expect a confiscation order to be made in that sum.
Are confiscation proceedings fair?
Although the process seems straightforward and fair in confiscation proceedings such as the one above the situation is more complicated than that. For example, the the £20,000 from the confiscation order above will not go to the employer. Instead it will go to the state.
The court may also, however, make a compensation order in the sum of £20,000 to repay the employer for their loss.
So, Jill will have to pay two lots of £20 000, a total of £40 000.
Quite possibly if she has the assets.
The potential for unfairness in confiscation proceedings
The situation can be a whole lot worse for some defendants.
For example, a client might steal a Porsche worth £130,000. He is caught a few hours later by the police. The the car is recovered undamaged and it is returned to its owner.
The ‘benefit’ in his case is £130,000 (the value of the car). This is the case even though the car has been returned to its owner within hours.
Examples from real confiscation cases
The examples above are all from real confiscation proceedings. While the results outlined do not always follow, the problem for defendants is that confiscation proceedings are ‘draconian and intended to be draconian’.
Certain convictions trigger what are known as the ‘lifestyle provisions’. This means that the finances going back many years will be subject to investigation for those convicted of a relevant offence. Unless a defendant can establish that the income was lawfully obtained, any unexplained monies will be at risk of being added to the ‘benefit’ figure.
Should you care if you don’t have any assets?
The benefit figure will still be determined even for defendant’s who don’t have any money or other property. If, for example, they come into some money at a later date the prosecution can ask the court for that money. This might include an inheritance, a pension lump sum or equity in a property that did not exist when the original order was made.
Any property of value can be seized in order to satisfy a confiscation order, and if the court believes that you can pay the order, and you fail to do so, you can be sent to prison in default.
The process can be very complicated
It is in very many cases. This , and we haven’t even mentioned gifts, hidden assets, corporate veils or Article 1 of the First Protocol of the European Convention of Human Rights.
The real punishment felt by an offender may not be the headline sentence but instead the financial penalty that flows from a confiscation order.
The rules are incredibly complicated. We will often find fundamental errors and assumptions being made by financial investigators. Basic errors can lead to incorrect calculations amounting to many tens of thousands of pounds.
In some cases, we can argue that the making of a confiscation order is so disproportionate that to do so would be unlawful.
As a result, before entrusting your case to any other solicitor you will want to ensure that they are up to speed not only on the basics of the offence with which you have been charged, but also in relation to the confiscation proceedings that are likely to flow following conviction.
Contact a specialist in confiscation proceedings
If you wish expert advice in relation to confiscation proceedings then please contact criminal solicitor Julia Haywood based at our Nottingham office. She provides nationwide advice and representation in relation to such cases.
Please call her on 0115 9599550 or use the contact form below.
Alternatively she can be contacted by letter at our Nottingham office.
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